White v. StateWhite v. State
Brandon White was tried by a Richmond County jury and convicted of murder аnd the unlawful possession of a firearm during the commission of a crime, both in connection with the fatal shooting of Damion Collier. White appeals, contending that the evidence is insufficient to sustain his convictions and that he was denied the effective assistance of counsel. Upon our review of the record and briefs, we see no error, and we affirm.1
About the sufficiency of the evidence, White argues that the evidence does not negate self-defense, as White told officеrs that he heard a shot coming from the other group before Sturgis fired, and the State‘s witnesses could not pinpoint where all of the shots originated or who shot first. But the only evidence that any of the shots came from somewhere other than White‘s vehicle was his own statement about the first shot. And the jury was free not to believe that claim. See Amos v. State, 297 Ga. 892, 893 (1) (778 SE2d 203) (2015); Ferguson v. State, 297 Ga. 342, 344 (1) (773 SE2d 749) (2015).
White also asserts that, even if Sturgis did shоot first, White‘s conduct before and after the incident showed that he did not know that Sturgis was going to shoot and the State failed to present any evidence to the contrary. “A person whо does not directly commit a crime may be convicted upon proof that a crime was committed and that person was a party to it.” Powell v. State, 291 Ga. 743, 744 (1) (733 SE2d 294) (2012) (citations and punctuation omitted). See also
2. White contends that he was denied the effective assistance of counsel at his triаl because his lawyer also had represented Wideman, and such representation of a potential witness, White says, created a conflict of interest for the lawyer. To рrevail on a claim that a conflict of interest worked a denial of the effective assistance of counsel, a defendant like White — one who failed to object to thе conflict at trial — must show that “an actual conflict of interest adversely affected his lawyer‘s performance.” Cuyler v. Sullivan, 446 U. S. 335, 348 (IV) (B) (100 SCt 1708, 64 LE2d 333) (1980) (footnote omitted). See also Barrett v. State, 292 Ga. 160, 174 (3) (c) (2) (733 SE2d 304) (2012). As we consider whether White has made such a showing, we do not, however, inquire “into actual conflict as something separate and apart from adverse effect.” Mickens v. Taylor, 535 U. S. 162, 172 (II), n. 5 (122 SCt 1237, 152 LE2d 291) (2002). Rather, as the United States Supreme Court has explained, an “actual cоnflict of interest” means “a conflict that affected counsel‘s performance — as opposed to a mere theoretical division of loyalties.” Id. at 171 (II) (emphasis in original). See also Tolbert v. State, 298 Ga. 147, 149 (2) (a) (780 SE2d 298) (2015). White “first asserted a сonflict of interest on the part of his trial lawyer in a motion for new trial, and on that motion, he had the burden of proving that his trial lawyer had an actual conflict of interest, that is, one thаt significantly and adversely affected the adequacy of the representation.” Id. at 150 (2) (a).
In any event, regardless of the precise timing and extent of the lawyer‘s prior representation of Wideman, White has not shown that such representation amounted to an actual conflict of intеrest that significantly and adversely affected the representation of White. The lawyer did not represent Wideman at trial, nor did either party call Wideman as a witness. See Williams v. State, 242 Ga. App. 1, 2 (528 SE2d 521) (2000). Cf. Tolbert, 298 Ga. at 148-157 (2) (a)-(d); Hill v. State, 269 Ga. 23, 24-25 (2) (494 SE2d 661) (1998). White arguеs that Wideman‘s testimony would have been important but that the lawyer‘s conflict of interest caused her not to call Wideman as a witness and cross-examine him vigorously. In her testimony on motion for new trial, however, White‘s lawyer explained that she did not subpoena Wideman because his version of events would not be helpful to her client. See Abernathy v. State, 278 Ga. App. 574, 585 (3) (a) (630 SE2d 421) (2006) (decision not to call аn individual as a witness “was not based upon any perceived conflict of interest, but rather was due to [the lawyer‘s] conclusion ... that [the individual] would not make a good witness“). Indeed, testimony of the investigator and a sergeant who previously interviewed Wideman indicated that he likely would have testified that White was involved in gang activity. And even at the hearing on the motion for new triаl, White never called Wideman as a witness.
It appears, therefore, that the lawyer‘s failure to call Wideman and cross-examine him as a hostile witness amounted to no more than a decision on trial strategy. See Williams, 242 Ga. App. at 2. The record does not show that this decision was “the result of a conflict of interest, as opposed to a reasonable strategic decision, an unreasonable strategic decision, or even inattention and neglect.” Tolbert, 298 Ga. at 157 (2) (d) (footnote omitted). Accordingly, White has failed to establish that his lawyer‘s decision not to cаll Wideman was anything but a strategic decision, and he has failed, therefore, to show that the
Judgment affirmed. All the Justices concur.